Illiam Frederick Turner, Petitioner-appellant, v. Michael J. O'dea, Iii, Warden, Respondent-appellee, 944 F.2d 905 (6th Cir. 1991)

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US Court of Appeals for the Sixth Circuit - 944 F.2d 905 (6th Cir. 1991)

Sept. 18, 1991


Before RALPH B. GUY, Jr. and BOGGS, Circuit Judges, and HARVEY, Senior District Judge.* 

ORDER

This pro se Kentucky prisoner appeals the district court's order denying his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. He requests the appointment of counsel. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, the panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

William Frederick Turner was convicted by a jury of one count of second degree burglary and as a first degree persistent felony offender. He was sentenced to serve ten years imprisonment.

In his application for federal habeas relief, Turner maintained that the conviction was obtained by use of evidence gained pursuant to an unconstitutional search and seizure and by use of evidence of other crimes and investigations. He also asserted that the prosecutor improperly commented on the evidence of other crimes.

The matter was referred to a magistrate who determined that the claim based on an allegedly unconstitutional search and seizure was not cognizable in a petition for a writ of habeas corpus. See Stone v. Powell, 428 U.S. 465, 494 (1976). The magistrate further determined that references to other crimes and other investigations did not result in a denial of fundamental fairness. See Walker v. Engle, 703 F.2d 959, 962 (6th Cir.), cert. denied, 464 U.S. 951 (1983); Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982) (en banc). Upon de novo review in light of petitioner's objections, the district court adopted the magistrate's report and recommendation and denied the petition.

Upon review, we conclude that the petition was properly denied.

Accordingly, the request for appointment of counsel is denied. The district court's order is affirmed for the reasons stated by the magistrate in the report and recommendation and as adopted by the district court. Rule 9(b) (3), Rules of the Sixth Circuit.

 *

The Honorable James Harvey, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation